(ii) Relationships of Influence

A relationship of influence is one where the claimant has placed his or her trust and confidence in the defendant so that the defendant is in a position which enables him or her to influence the claimant to enter into the particular transaction without necessarily dominating the claimant.^[1] There are two methods for ascertaining which relationships will trigger the presumption.^[2] The first requires the relationship to fall within a recognized group of relationships which are always presumed to be relationships where the claimant is under the defendant’s influence;^[3] the second method requires a relationship of trust and confidence to be established with reference to the particular facts of the case.

(1) Recognized Relationships of Influence

Where the relationship between the parties is recognized by law as being a relationship of influence, it is sufficient that the claimant establishes that his or her relationship with the defendant falls within one of these established categories without any need to prove that he or she placed trust and confidence in the defendant. So, for example, it will always be presumed that a parent has influence over his or her minor child,^[4] that a guardian has influence over his or her ward,^[5] and that a doctor has influence over his or her patient.^[6] Other relationships have been treated as presumed relationships of influence, notably that a solicitor has influence over his or her client,^[7] and that a trustee has influence over his or her beneficiary,^[8] but such cases are better treated as involving an abuse of a fiduciary relationship of confidence, with restitution founded on wrongdoing rather than unjust enrichment.^[9] Crucially, the relationship between a husband and wife is not a relationship which falls within these established categories of influence,^[10] although a relationship of influence might be identified from the particular facts of the case.^{[11] [12]} Somewhat surprisingly, however, in Leeder v Stevens⁷⁵ it was held that the relationship between fiance and fiancee was a recognized relationship of influence and, even more controversially, so was an adulterous relationship between a man and his mistress who were in a long relationship and who contemplated marriage to each other in the future. This is a particularly controversial decision bearing in mind that the relationship between husband and wife is treated as factual relationship of influence. The same should be the case for an engaged couple and others who are in a sexual relationship.^[13]

Where the relationship is one of the recognized relationships of influence there is an irrebuttable presumption of influence, but it must still be established that this influence is undue by the claimant establishing that the transaction requires explanation.^[14]

(2) Factual Relationship of Influence

If the relationship between the claimant and the defendant does not fall within one of the recognized relationships of influence, the claimant must prove that his or her relationship with the defendant was such that the claimant placed such a degree oftrust and confidence in the defendant that the claimant was under the defendant’s influence, so that the defendant could take advantage of the claimant.^[15] The relationship of influence might even arise during the transaction which the claimant is seeking to set aside.^[16] Such factual relationships of influence have been identified in a wide variety of different contexts. For example, such a relationship has been found to exist between a housekeeper and her elderly employer,^[17] between a junior employee and her employer’s agent,^[18] between a farm manager and the elderly owner of the farm,^[19] between a mother superior and a nun in her convent,^[20] and between a soldier and his commanding officer.^[21] Such a relationship has even been recognized between a bank and a potential guarantor of debts owed to the bank, where the assistant bank manager had gone beyond the normal commercial role of the bank and had advised on general matters relating to the wisdom of a particular transaction.^{[22] [23]} But it does not follow from the fact that relationships of influence have previously been recognized in these situations that all similar relationships can be treated as relationships of influence; everything turns on the facts of the particular case. For example, in National Westminster Bank plc v Morgan⁸⁶ the House of Lords held that undue influence could not be presumed between a bank manager and the wife of one of his customers. The court stressed that the relationship between a banker and customer will only trigger the presumption of undue influence in the exceptional case where there is evidence that the relationship between the parties went beyond the normal business relationship of banker and customer.⁸

The most important relationship in practice which may be shown to involve trust and confidence is the relationship between a wife and her husband.^{[24] [25]} As regards such relationships it can never be assumed that, for example, a wife does repose trust and confidence in her husband as regards the management of their mutual financial affairs; this is something which needs to be established on the facts of each case. However, in Barclays Bank pic v O’Brien^[26] Lord Browne-Wilkinson did suggest that ‘the risk of undue influence affecting a voluntary disposition by a wife in favour of a husband is greater than in the ordinary run of cases where no sexual or emotional ties affect the free exercise of the individual’s will’.^[27] Although it is usually the wife who will be seeking to establish that her husband unduly influenced her, it will sometimes be the husband who seeks to establish that his wife unduly influenced him. This is illustrated by Simpson v Simpson^[28] where the transfer of property by a husband to his wife was set aside because the husband was increasingly dependent on his wife by virtue of a terminal illness, such that there was a particular relationship of trust and confidence between them.

In determining whether there was a relationship of trust and confidence between the claimant and the defendant, the burden of proof is borne by the claimant, but he or she can adduce evidence of all the circumstances of the case to identify such a relationship. Whilst the terms of the transaction will never be sufficient evidence by itself to establish the necessary relationship, where the relationship between the parties is of a type which might involve trust and confidence, the terms of the transaction will be of particular significance in reaching the conclusion that such a relationship did indeed exist.^[29]

• [1] Goldsworthy v Brickell [1987] Ch 338, 401 (Nourse LJ).
• [2] National Commercial Bank (Jamaica) Ltd v Hew [2003] UKPC 51.
• [3] For the valid criticism of the recognition of these irrebuttable presumptions of influence as the product ofa very different social context, see Lewison [2011] RLR 1, 9.
• [4] Lancashire Loans Ltd v Black [1934] 1 KB 380. Where the child has passed the age of majority it seemsthat there will be an automatic presumption of influence for a short time afterwards and thereafter arelationship of influence will need to be established on the particular facts of the case: ibid, 419 (Greer LJ).See also Bainbrigge v Browne (1880) 18 Ch D 188.
• [5] Hatch v Hatch (1804) 9 Ves 292, 32 ER 615.
• [6] Mitchell v Homfray (1881) 8 QBD 587; Radcliffe v Price (1902) 18 TLR 466.
• [7] Wright v Carter [1903] 1 Ch 27. 71 Ellis v Barker (1870) LR 7 Ch App 104.
• [8] 72 See p 275, below, and Chapter 19.
• [9] 73 National Westminster Bank plc v Morgan [1985] AC 686, 703 (Lord Scarman). See also Barclays Bank plcv O’Brien [1994] 1 AC 180, 190 (Lord Browne-Wilkinson) and Royal Bank of Scotland plc v Etridge (No 2)
• [10] [2001] UKHL 44, [2002] 2 AC 773, 797 (Lord Nicholls of Birkenhead).
• [11] Similarly the relationship between aunt and nephew is not a recognized relationship of influence: Randallv Randall [2004] EWHC 2258 (Ch).
• [12] [2005] EWCA Civ 50.
• [13] See N Enonchong, ‘The Irrebuttable Presumption of Influence and the Relationship Between Fiance andFiancee’ (2005) 121 LQR 567.
• [14] Attorney-General v R [2003] UKPC 22, [22] (Lord Hoffmann). See p 266, below.
• [15] Re Brocklehurst [1978] Ch 14.
• [16] Turkey v Awadh [2005] EWCA Civ 382, [2005] P and CR 29, [10] (Buxton LJ).
• [17] Re Craig [1971] Ch 95.
• [18] Credit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144.
• [19] Goldsworthy v Brickell [1987] Ch 378. See also O’Sullivan v Management Agency and Music Ltd [1985]QB 428 where a relationship of influence was identified between a manager and a young singer-songwriter.Since the relationship was also characterized as a fiduciary relationship the case is better regarded as oneinvolving abuse of a fiduciary relationship rather than undue influence. See Chapter 19.
• [20] Allcard v Skinner (1887) 36 Ch D 145.
• [21] R v Attorney-General of England and Wales [2003] UKPC 22. See J O’Sullivan, ‘Who Dares Whinges:Duress, Undue Influence and the SAS’ (2003) 62 CLJ 554.
• [22] Lloyd’s Bank Ltd v Bundy [1975] QB 326. See also Harry v Tate and Lyle Refineries Ltd [1982] 2 Lloyd’s
• [23] Rep 416, where a so-called ‘fiduciary relationship’ was identified between an employee and his employer’sinsurers. 86 [1985] AC 686.
• [24] As occurred in Lloyd’s Bank Ltd v Bundy [1975] QB 326.
• [25] Royal Bank of Scotland plc v Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773. See also relationships withan elderly person: Hammond v Osborn [2002] EWCA Civ 885. See generally F Burns, ‘The Elderly and UndueInfluence Inter Vivos’ (2003) 23 LS 251 and B Sloan, ‘Due Rewards of Undue Influence?—Property TransfersBenefiting Informal Carers’ [2011] RLR 37.
• [26] [1994] 1 AC 180, 191.
• [27] Cf Credit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144, 155 (Millet LJ).
• [28] [1992] 1 FLR 601.
• [29] Credit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144, 154-5 (Millet LJ).